The State of Aloha

May 9, 2014

In a criminal trial, government prosecutors try to convince a jury that there is evidence beyond a reasonable doubt that the accused committed the charged crime. If the jurors unanimously agree there's enough evidence, they are supposed to find the accused guilty. And after that, the jury is excused. The case goes back to the judge to sentence the accused. In many cases, judges sentence folks to probation. In others, they are sent to prison. But there is one sentence that is completely out of bounds: death.

It wasn't always like that. The death penalty was a part of life in Hawaii. In fact, the first jury trial, in 1826, was a capital case. Although the accused was found not guilty, he was executed anyways. The governor ordered that he be publicly hanged.

Hangings were the preferred method of execution when the death penalty was around. Executions were rare. In a span of more than 100 years, only 75 people were hanged. And executing haoles was even more uncommon. There is just one confirmed case of a white man being executed in Hawaii. The overwhelming majority were Filipino and Hawaiian.

By the 1920s, hangings took place in a room at the Oahu jail. On a January morning in 1944 - in the middle of the second world war - Adriano Domingo became the last person executed in Hawaii. Domingo, who was convicted of murder for stabbing a woman to death in a pineapple field on Kauai just four months before the execution, stood on the platform. A black bag was placed over his head. His arms and legs were bound and the trap door opened.

The death penalty was abolished in the islands in 1957. The trap door was cemented shut and the room at the Oahu jail became a dormitory at what is now called the Oahu Community Corrections Center. In doing so, we avoided highly polarizing controversies that are debated all over the country.

But now the death penalty has found another way back to Hawaii. Naeem Williams was convicted of murder last month. After hearing weeks of testimony, the jury found him guilty of murdering his 5-year-old daughter.

As tragic as those facts may be, there are many murder convictions in the state. But this case stands out for one reason: It took place on a military base, which allows the federal government to prosecute Williams for murder and seek the death penalty.

Now, the same jury that found him guilty has an even harder job. Jurors will determine whether Williams should be executed. The kind of evidence during this phase of the trial is very different. Jurors will be instructed to weigh aggravating and mitigating factors.

Prosecutors told the jury that the main aggravating factor in this case is vulnerability of Williams' daughter. The defense is also preparing its case. Mitigating factors include considerations of Williams' mental capacity or if he suffered from a severe mental or emotional disturbance. In the end, the decision on whether the offense requires Williams to lose his life rests with those jurors. If the jurors find that death is not warranted, he will still spend the rest of his life in prison.

If Williams - who, like Domingo and 74 before him, is not Caucasian - gets the death penalty, the details about when, how and where the execution would take place are yet to be determined. The federal government, however, does have the power to carry out the act here in Hawaii. But even if that were to happen, it would take a long time.

Inmates on death row have many opportunities to appeal to higher courts to review the decisions of the jury and the judge. It's an important right. You can't undo a death sentence. In many cases, it takes years. Look at Oklahoma's recent debacle.

It took nearly 14 years before Clayton Lockett's execution on April 29 at 6 p.m. Central time. Instead of a hanging, we have the lethal injection. The injection of top-secret chemicals is believed to be a humane way to kill another. It's designed to put the person to sleep, then shut down the respiratory system and, finally, stop the heart from beating.

Lockett's execution did not happen in that order. He writhed, moaned, convulsed, cried out, and 43 minutes after the injection died of a heart attack. Prison officials said that his vein had "blown" or even exploded.

This part of our criminal justice system has stayed out of Hawaii for more than 50 years. So are we really ready to revisit the death penalty? Are we ready to handle the long appeals, gut-wrenching decisions for jurors, and the risk of potential horrors at execution? The jury is - quite literally - still out on this one.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is 808stateofaloha@gmail.com. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."